In DeAngelo, the court explained that "the right to speak at a sentencing
hearing should logically include the right to make any statements relevant to existing
sentencing and parole practices." 306 Or at 95. Because of Oregon's criminal sentencing
structure, a defendant should be allowed to inform the judge of "criminal history, the
crime severity, and aggravating and mitigating matters." Id. The court agreed with the
statement of the Arizona court in State v. Allie, 147 Ariz 320, 710 P2d 430 (1985), that

With that understanding of the law, we turn to the arguments in this case.
The state first argues on appeal that, "[d]efendant failed adequately to preserve a claim
that the trial court denied him the right of allocution. At no point did defense counsel
suggest that defendant wanted to address the court personally concerning his sentence."
ORAP 5.45. The answer to that argument is that after the initial sentencing hearing was
continued and the trial court received new sentencing information, defendant was not
furnished the opportunity to address the court to say anything at all. Although defendant's
offer of proof did not include a personal statement from defendant, defense counsel
requested at the second hearing, "[c]an we be heard, Judge." (Emphasis added). This
case differs from State v. Fern, 110 Or App 185, 822 P2d 1210 (1991), in which we
rejected the argument that the defendant had been denied his right to allocution when he
made no objection whatsoever. Here, defense counsel notified the trial court that both he
and defendant wished to speak by using the word "we." As importantly, the requirement
of preservation of error for purposes of appeal necessarily assumes that a party has had an
opportunity to address the trial court. DeAngelo, 306 Or at 98 (holding that the petitioner
was excused from making a record of what she would have said when the trial court cut
off all further communications in no uncertain terms). Here, defense counsel tried to
assert defendant's Article I, section 11, rights, but the trial court declined to hear from
him.

Next, the state argues that defendant was not deprived of his Article I,
section 11, rights because the court heard from defendant and defense counsel at the first
hearing, and it therefore considered defendant's criminal history, his personal statements,
and other matters pertinent to sentencing before the imposition of sentence. However, it
is clear from the record that the court changed its predisposition about concurrent
sentences after hearing the tape.

At the first hearing and before the defendant engaged in the threatening
conduct toward Judge Yraguen, the court said,

"Whatever time I'm going to impose[,] it's going to be concurrent with what
you were convicted of. In other words, you're not going to get any
additional time. I'm fair[,] and I'm a cheapskate, okay? And I'm not going
to waste tax payer money to lock you up any longer than you're going to be
locked up on a Measure 11 crime. * * * I'm not going to run the sentence
on this escape charge consecutively. To put it another way[,] it will run
concurrent."

At the second hearing, the court said, before hearing the tape, that it had "resolved to talk to [defendant] in May about it [being] the time to change
an attitude, time to change conduct, and [the court] felt then that if in fact
[defendant] had learned a lesson that * * * seventy months in jail was a
substantial lesson. But if in fact[,] he's now threatening Judges, [the court
is] very concerned about that attitude as being indicative of an
unwillingness to change."

After hearing the tape, the court said:

"It's obvious that the words I spoke two weeks ago didn't have any impact
on your attitude when you came in front of Judge Yraguen this morning.
You were not really rude. You were threatening. It demonstrates to me an
unwillingness to begin the process of change that can make you a
productive individual."

In DeAngelo, the trial court cut the defendant's personal statement off
before imposing sentence, saying, "[t]hat's enough, I don't want to listen to you anymore."
DeAngelo, 306 Or at 97. The Supreme Court observed that the trial court's interruption
did not occur because it found the statements irrelevant, but because it was "annoyed and
disgusted." DeAngelo, 306 Or at 98. The Supreme Court observed:

"Perhaps what [the defendant] would have expressed would not have
impressed the sentencing judge, but it might have influenced a parole board
considering her sentence. Perhaps her words would have contained
information vital with regard to a parole board decision to override the
minimum sentence, ORS 144.110(2)(e) or when considering aggravating or
mitigating circumstances. ORS 144.120(2)." Id.

The DeAngelo court then concluded that the sentencing court violated the defendant's
Article I, section 11, right to be heard when it summarily stopped her from saying
anything further at her sentencing hearing.

Similarly here, defendant was cut off after requesting to be heard by the
sentencing court as to his sentence. The trial court proceeded to impose sentence on him
without permitting either defense counsel or defendant to comment on the new
information before the court. Clearly, that information was germane to the trial court's
decision about whether to make the sentence on the escape conviction concurrent or
consecutive to the assault conviction. Consequently, we hold that the opportunity
presented to defendant and his counsel at the initial hearing to address the issue of what
sentence should be imposed did not satisfy his rights under Article I, section 11.

Finally, the state argues that any error by the trial court is harmless. The
state's brief explains,

"From defense counsel's statement on the record after the court hung up the
phone, it appears that he planned to provide the judge with 'a copy of this
record so that he has that and if he wishes to reconsider to do that prior to
our filing of our notice of appeal,' he could do so. * * * It is significant
that defendant does not now challenge his sentence on either of the bases he
made in his offer of proof. Given that the trial court considered the relevant
statutory criteria and defendant's statements before imposing sentence, and
given that defendant has waived those contentions that he says he wanted to
present to the court, there is no basis for remanding this case for
resentencing."

We understand the state to make two arguments as to why the denial of
defendant's section 11 rights was harmless. First, the state argues that the trial court had
the opportunity to consider defendant's position because the trial court considered and
rejected defendant's argument that the threats were irrelevant when it overruled
defendant's objection to the tape and because defendant made an offer of proof after the
sentencing hearing. The argument made by defense counsel regarding the relevance of
the tape's information to the sentencing process did not necessarily encompass all of the
mitigating factors that defendant might have wished to present for the court's
consideration in light of the tape. Also, nothing in the record before us demonstrates that
the court reconsidered its sentence in light of the offer of proof. The imposition of
consecutive sentences in this case was discretionary, see ORS 137.123. The court was
still weighing whether to impose consecutive or concurrent sentences when it made a
finding that the escape and assault were separate incidents and when it decided to listen to
the tape. There is no way to know whether the court would have imposed a consecutive
sentence or whether the court would have been persuaded to depart from the presumptive
sentence, had it heard from defendant and his counsel after hearing the tape.

Second, the state contends that defendant waived the issues that he wanted
the trial court to consider by not appealing the sentence on the substantive grounds raised
in his offer of proof. We are unaware of any rule of law, and the state argues none to us,
that would hold that the abandonment of a substantive challenge to a sentence on appeal
operates to waive a procedural challenge on appeal. The grounds are independent of each
other, and defendant's Article 1, section 11, rights are discrete from any other claim of
error, such as double jeopardy. Defendant's challenge on this appeal is aimed solely at the
court's exercise of discretion in deciding whether to impose a presumptive and
consecutive sentence. Article I, section 11, guarantees him the right of allocution and the
right to be heard through counsel concerning those decisions, rights that he was denied
under the facts of this case.

Remanded for resentencing; otherwise affirmed.

1. In Rogers,330 Or at 305, the court reiteratedthat a defendant has a right to
address the decision-maker, whether that is judge or jury, on the issue of leniency.

"When the Oregon Constitution was adopted, the permissible scope of a
criminal defendant's unsworn presentencing statement included legal
reasons why the court should not impose a potential sentence, general pleas
for leniency, mitigating factors and requests for pardon." Id. at 305.